Hatziandreou Holdings Pty Ltd v Bayside Council

The site and the locality

1. The site is legally known as Lot 1 in DP 544870 and Lot 2 in DP 543414, and is now also the parent lot in SP 94987. It has an area of 919.05m2 with a 24.79m frontage to Rocky Point Road, a depth of approximately 42.7m and a rear frontage of 20.12m to Clelland Lane. The site has a fall of up to two metres from Rocky Point Road to the rear boundary at Clelland Lane. Rocky Point Road is a major road along which the shopping strip known as Ramsgate town centre is located. The site is towards the southern end of the Ramsgate town centre. The shopping strip is generally one and two storey retail and commercial properties fronting both sides of Rocky Point Road. The eastern side of Rocky Point Road within the Ramsgate town centre is zoned B4 Mixed Use pursuant to the Rockdale Local Environmental Plan 2011 ("RLEP 2011").
2. Further to the south of the site, at the junction of Rocky Point Road and along Park Road are a number of three and four storey mixed use and residential flat buildings.
3. At the rear of the site, Clelland Lane is 5.5m in width and accommodates two way traffic. On the other side of Clelland Lane are residential dwellings that front Campbell Street, with one property directly across from the site converted for use as a doctor's surgery. Development to the east of the site, across Clelland Lane, is characterised by one and two storey detached houses. The lane and the residential dwellings are zoned R3 Medium Density. The rear of the site is therefore at a zone interface, with the R3 Medium Density zone also subject to smaller FSR and height development standards than the subject site. An aerial photograph of the site, and an extract of the zoning map, can be found at Figures 1 and 2 respectively.

The development as approved

1. The development for which consent was granted comprised two buildings, one fronting Rocky Point Road (building A) and another fronting Clelland Lane (building B). Both buildings were approved to be 5 storeys, and a total of 20 units were approved across the two buildings, with 18 2-bedroom units, one 1-bedroom unit, and one 3-bedroom unit. Two shops were approved at the ground floor, in the building fronting Rocky Point Road. Vehicular access to the two levels of basement is from Clelland Lane.
2. As approved, basement 2 comprised 12 car spaces, 3 bicycle spaces and 14 storage cases, and basement 1 comprised 18 car spaces inclusive of 1 dual visitor/carwash bay, 3 motorcycle spaces and 16 storage cages.
3. The two shops fronting Rocky Point Road were approved with sizes of 98m2 and 58m2. The ground floor, as approved, also comprised a residential lobby with access from Rocky Point Road, a plant room, lift access, accessible toilet and shower for the commercial component, garbage rooms, circulation spaces and 110m2 of communal open space within the central communal residential courtyard between the two buildings. The central courtyard also included consolidated deep soil areas, which was to be achieved by setting the basement away from the northern side boundary.
4. On the ground floor, building B contained two residential dwellings (a one bedroom of 67m2, and a two bedroom of 75m2), each with a terrace area of 13.3m2 exclusive of landscaping. A plan of the approved ground floor is shown at Figure 3.
5. Levels 1 to 3, as approved, comprise a total of 5 x 2 bedroom units with one plant room and mechanical exhaust structure adjoining a bedroom of units A1.3, A2.3 and A3.3 (one of the units on each level). As approved, levels 1 to 3 are setback 3.4m from the rear boundary of the site, and have a zero setback at the front boundary.
6. The internal building separation (between buildings A and B) as approved on the northern side at level 1 is 9.975m wall to wall, and on the southern side at level 1 is 11.1m wall to wall. A typical plan of levels 1 to 3 is shown at Figure 4.
7. The fourth floor (5th storey), as approved, is set back from both the eastern and western edge of the building by 4.53-6.525m from the front property boundary and by 6.895m from the rear boundary. It comprised 3 residential units, including two 2-bedroom units and one 3-bedroom unit, as well as a west facing communal roof terrace of 40m2, and a central communal open space of 92m2.
8. As approved, the northern internal building separation (between buildings A and B) at level 4 is 10.435m and the southern internal building separation is 11.27m. The plan for level 4, as approved, is shown at Figure 5.
9. The development, as approved, had an approved height of 15.5m for building A and 16m for building B. The floor space ratio was considered in the planning assessment report to be 2.17:1. The FSR development standard that applies the site is 2:1. The total area of communal open space on the site, as approved, was 242m2.

The development as constructed

1. The development, as constructed, is not consistent with what was approved. A comparison of what was approved and what was constructed is outlined clearly in plans in Annexure H to Ex 5. The changes can be summarised in the following ways.
2. Firstly, there has been a reconfiguration of the ground floor level and extension of the floor area of shop 1 into both an adjoining plant room and the ground level communal open space area. As such, at the ground floor:

• Shop 1 has increased from 98m2 to 168m2
• Shop 2 has increased from 58m2 to 82m2
• The ground floor communal open space has been reduced from 110m2 to 67m2 (when the circulation space is excluded)
• The private court yard areas of the two units fronting Clelland Lane have been reduced from 13.3m2 to 7.7m2.
• The building separation between buildings A and B has been reduced from 11m to 7.6m.

1. Secondly, there has been a reduction in the internal building separation between buildings A and B. At the ground floor, the separation is 7.6m, and on levels 1 to 4 the separation is 8.9m at the northern side (approved as 9.8m) and 10.1m at the southern side (approved as 11.1m). Whilst the development, as approved, had an increased separation at the fourth floor (approved as 10.435m and 11.27m), the fourth floor now has the same separation distances as the lower floors.
2. Thirdly, every one of the 18 residential apartments has had the glass line pushed out on either the western or eastern side (or both), resulting in an increase in the floor area of the unit and a corresponding reduction in the balcony size of each unit.
3. Fourthly, the plant rooms that previously adjoined units A1.3, A2.3 and A3.3 were not required and have been converted to a third bedroom for each of those 3 units. An additional bedroom was also added to unit A4.2 by reducing the west facing communal open space (terrace) on level 4. As such, 4 residential units increased from 2-bedroom units to 3-bedroom units.
4. Fifthly, level 4 of the development has been reconfigured as follows:

• The west facing communal open space on level 4 of the development has been reduced as a result of the extension of the balcony and the addition of a third bedroom to unit A4.2.
• The area previously approved as communal open space has been divided by screens and a doorway, so that part of it has become a front court yard (private open space) to unit B4.1.

1. This has resulted in a reduction in the area of communal open space on the fourth floor, from 132m2 to 58m2.
2. Sixthly, both basement levels were reconfigured, allowing the basement to avoid interference with a sewer line. The basement was extended to the northern boundary, which meant that the deep soil component adjoining the northern boundary of the site was deleted. Further, level 2 of the basement was extended further to the east by 3.7m. The car parking spaces and storage cages were also reconfigured.
3. As a consequence of each of the above changes, the development, as constructed:

• Has a greater FSR than what was approved, with an as-built FSR of 2.49:1 and total floor space of 2290.66m2.
• Has an overall reduction of communal open space from 242m2 to 128.4m2.
• Has no deep soil landscaping.
• Does not have sufficient car parking spaces to comply with the minimum number required for the increased sizes of the residential units and the commercial spaces.

The modification application

1. The modification application that is before the Court is not simply confined to approving what has been constructed. The modification application seeks to amend the development consent so as to incorporate the development as constructed as well as the following proposed works:

• The line markings to be repainted and storage cages relocated on both levels of the basement so as to provide 18 total car spaces on each basement level, and to allow swept path of B85 vehicle.
• On the ground level, the main entry door is to be relocated further within the main entry corridor.
• On the ground level, the common courtyard is to be landscaped in accordance with the proposed landscape plan, the exit door is to be relocated to the eastern side of the existing exit point, a new glass canopy will be installed over the outdoor common open space entry, and a BBQ will be installed.
• On levels 1, 2 and 3 a number of external louvres will be removed, and privacy screens installed on the balconies of units facing Clelland Lane.
• On level 1, additional common open space will be provided on the southern boundary of the development by removing the existing glass louvre system and creating a planted area with freestanding planters.
• A roof top communal area is proposed as 151m2 of communal open space, with a new platform lift and stairs to access the communal area from level 4.

1. The result would be a proposed development, as modified, with a FSR of 2.49:1 and 239.55m2 of communal open space.
2. The plans for which approval is sought, which clearly depict what has been constructed together with the proposed works, are Annexure I to Ex 5. It is largely agreed that the proposed works create an improved outcome for the development when compared with what has been built, by achieving adequate communal open space, protecting privacy, improving landscaping and improving the car park layout.

The role of the Court on the appeal

1. In considering the appeal, the role of the Court is to re-exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.55(2) of the EPA Act (s 39 of the LEC Act).
2. The exercise of the power in subs 4.55(2) requires the Court, in exercising the functions of the consent authority, to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted".
3. Upon reaching the satisfaction that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted" and that the other matters in subs 4.55(2) are satisfied, subs (3) provides that: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
4. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
5. The assessment pursuant to subs 4.55(3) is not focussed on the extent to which the constructed building departs from what was approved. Rather, it is focussed on the application for modification of the consent, which, as outlined above, seeks to incorporate both the development as constructed and the above-described proposed works.
6. Business premises, shop top housing and residential flat building are all permissible with development consent in the B4 Mixed Use zone, pursuant to the RLEP 2011. The objectives of the zone are as follows: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
7. Clause 4.3 of the RLEP 2011 provides for a maximum height of 16m, whereas the proposal as modified (and as built) has a building height that exceeds the height development control at the location of the fire stair, by 250-300mm. The objectives of cl 4.3 are: (a) to establish the maximum limit within which buildings can be designed and floor space can be achieved, (b) to permit building heights that encourage high quality urban form, (c) to provide building heights that maintain satisfactory sky exposure and daylight to buildings, key areas and the public domain, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity.
8. The building height development standard for the eastern side of Clelland Lane is 8m.
9. Clause 4.4 of the RLEP 2011 provides a FSR development standard, which, for the subject site, is 2:1. The proposal as sought to be modified by this application has a FSR of 2.49:1. The objectives of cl 4.4 are as follows: (a) to establish the maximum development density and intensity of land use, accounting for the availability of infrastructure and generation of vehicular and pedestrian traffic, in order to achieve the desired future character of Rockdale, (b) to minimise adverse environmental effects on the use or enjoyment of adjoining properties, (c) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation.
10. The site is also identified as having an active street frontage on the Active Street Frontages Map pursuant to cl 6.11 of the RLEP 2011, which provides at subcl (3): (3) Development consent must not be granted to the erection of a building, or a change of use of a building, on land to which this clause applies unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use.
11. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65") also applies, and provides at cl 30 that: (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
12. The Apartment Design Guide ("ADG") and the design quality principles are therefore relevant in the context of cl 30.
13. Objective 3F-1 in Part 3F 'Visual Privacy' of the ADG provides the following design criteria: "1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Building Height Habitable rooms and balconies Non-habitable rooms Up to 12m (4 storeys) 6m 3m Up to 25m (5-8 storeys) 9m 4.5m Over 25m (9+ storeys) 12m 6m

1. The ADG provides, at objective 3E-1, that "Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality." The design criteria, insofar as it relates to the site, requires that 7% of the site area is a deep soil zone with a minimum width of 3m. The design guidance also provides that "communal open space should be co-located with deep soil areas".
2. The ADG design criteria requires that communal open space be provided that has a minimum area equal to 25% of the site area. Although there is some disagreement on the area of communal open space provided by the proposed modified development, even on the most conservation calculation, the proposed modified development complies with this design criteria with at least 239.55m2 of communal open space.
3. The Rockdale Development Control Plan 2011 ("RDCP") also applies and is considered below.

Evidence

1. Expert evidence on the town planning and urban design issues was given by Mrs Fiona Prodromou, a town planner employed by the Council, Mr Michael Gheorghiu, a town planner engaged by Hatziandreou, Mr Steven Layman, an architect and urban design expert engaged by the Council, and Mr Chris Tsioulos, an architect and urban design expert engaged by Hatziandreou.
2. Some of the evidence given by these experts, as directed by the contentions raised by the Council in the proceedings, is on the unlawfulness of aspects of the development. This unlawfulness arises from non-compliance with conditions of original development consent. However, as the Chief Judge considered in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99, the past unlawful conduct is not relevant to determining whether to exercise the power to modify a development consent. Specifically, after considering relevant authorities, his Honour stated at [33] that: "Having regard to these authorities, the mere fact that the applicant may have operated its restaurant facility in breach of conditions of consent is neither a bar to the power of the Court to modify under s 96(2) [now s 4.55(2)] of the EPA Act the development consent for the restaurant nor a relevant factor by itself in determining whether to exercise that power."
3. On dealing with the merits of the modification application, there were several issues concerning the modification application that were agreed between Mrs Prodromou, Mr Gheorghiu and Mr Tsioulos. In particular, Mrs Prodromou considers that a number of issues that arise through the modification application can be dealt with satisfactorily by conditions of consent. These issues include the adequacy of the design of the communal open space, the necessity for the construction of the planters as originally approved to the east facing balconies, the adequacy of the storage for 6 of the 20 units, and the privacy impacts caused by the reduced building separation. She also opines that the street setback of the proposed modified development is acceptable.
4. Despite those matters which Mrs Prodromou agrees can be resolved by conditions of consent, there remains a number of issues in dispute. They include the question of whether the development as modified is substantially the same as that for which consent was originally granted, the consistency of the development with the design objectives, whether the FSR is acceptable, and the public interest.
5. Evidence on the parking and traffic issues was given by Mr Vince Doan, a traffic engineer engaged by Hatziandreou, and Mr Craig McLaren, a traffic engineer engaged by the Council. As a result of their evidence, the modification application that is before the Court sets out a modified basement car park layout, which is largely agreed, except for some small spaces and outstanding certification. However, a number of traffic and parking issues remain in dispute, and are considered further below.

Is the proposed modified development substantially the same?

1. The Council's first contention is that the proposed modified development is not substantially the same development as the development for which the consent was originally granted. If I was to accept this position, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46).
2. In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, the Court of Appeal endorsed the approach of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, in which his Honour found that the word "substantially" in this context means "essentially or materially or having the same essence."
3. In considering this in the context of a predecessor to s 4.55(2)(a) in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 ("Moto Projects"), Bignold J observed (emphasis added): "54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."
4. In Moto Projects, Bignold J determined that a modification application to remove separate ingress for vehicular traffic resulted in a proposal that was not substantially the same because that separate ingress was "a material and essential physical element of the approved development" (at [59]). This "material and essential physical element" was ascertained from the reasons given on the grant of development consent, expressed in a judgment of the Court. Similarly, in Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, I considered the reasons given by the consent authority (as set out in the assessment report) and determined that the 3-storeys was an essential element of the development the subject of the development consent.
5. In Arrage v Inner West Council [2019] NSWLEC 85, Preston CJ made it clear that the application of the statutory test described by Bignold J in Moto Projects "did not substitute a different or additional test for the test imposed by the statutory provision". His Honour elaborates in the following way: "24 First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]. 25 Second, the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development. 26 The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. 27 This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28 That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]. 29 But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted." (Emphasis added)
6. Therefore, the comparative exercise required by the statute concerns the original development, and the development as proposed to be modified by the modification application. Consistent with the judicial interpretation of the statutory test, this may involve (but does not require) an inquiry into the material and essential features or elements of the original development, which must "be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted."

The Council's submissions

1. The Council submits that there are a number of fundamental matters that gave rise to the original consent, which form material and essential elements of the approved development, the change to which would result in a modified development that is not substantially the same as what was approved.
2. The first element that the Council says was fundamental to the grant of consent, was the provision of a deep soil zone contiguous with ground floor communal open space between the two buildings. The approved development had an area of deep soil with dimensions of 6.83m x 5.475 in the location of the central communal open space area, which was 113m2. However, the modified development proposed does not have any deep soil area, and has a ground floor central courtyard communal open space area of 67m2 when the circulation space is excluded.
3. In support of its position that the provision of the deep soil zone on the ground floor and contiguous to the communal open space was an essential element of the development, the Council relies on the history of the development application. Prior to the grant of consent, the Council (through its Design Review Panel) required that the plans be amended to set the basement away from the northern side boundary so to as to provide for deep soil planting at ground level. The Panel also required the deletion of two central units to ensure that the communal open space was provided on the ground floor.
4. The second element that the Council says was essential to the grant of consent was the removal of the roof top communal area, which is now sought to be reinstated to create adequate communal open space following the deletion of space at the ground floor and fourth floor. In support, the Council relies on the assessment report (Ex 3 Tab 11), in which the Panel's comments are recited as "It is recommended that the proposed rooftop communal space be relocated to the top level of Block A between units A4.2 and A4.1". As such, the Council submits that the location of communal open space on the fourth floor (5th storey) and on the ground level were essential elements of the development.
5. The third matter that the Council says causes the modified development to depart from the approved development in such a manner as to not meet the requirement for it to be "substantially the same", is the increase in the FSR occasioned by the modified development. The Council says that, whereas the approved development breached the FSR development standard in a manner that was described as "minor and indiscernible", the modified development increases the FSR to 2.49:1. In particular, the commercial floor area has increased by 89m2 from what was approved, and additional bedrooms have been added to residential dwellings. The Council says that, as a result, the modified development no longer meets the objectives of the FSR development standard.
6. The fourth aspect of the modified development that the Council says renders it not substantially the same as the original development is the fact that the modified development has car parking that is not compliant with the minimum car parking spaces required or with the minimum size for visitor spaces, and does not have a loading dock to comply with the conditions of consent.
7. The fifth aspect that the Council considers a substantial change to the development is the reduction in amenity. In particular, the Council points out that with the modified development, there is a complete loss of deep soil planting, reduction in privacy and separation distances between the two buildings, the removal of the outlook to deep soil landscaped area, the increased requirement for storage due to increased commercial space, the removal of internal storage within the residential dwellings, and the removal of the planter boxes on the eastern edge of the balconies facing Clelland Lane. The latter was required by a condition of the original consent, and as such, the Council relies on the decision of Commissioner Morris in Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241, in which the Commissioner considered that at the modification application to add an additional storey to the building would result in a development that was not substantially the same. The Commissioner arrived at this conclusion because (at [56]): "the original consent provided for changes to be made to the building from that proposed in the original development application. Those changes are clearly articulated in condition 9 of the original consent. I consider that those changes, which involved a decrease in the height of the building so that it was a maximum of 5 storeys was an essential element of the council's determination of the application."
8. The Council submits that, having regard to a quantitative and qualitative comparison and taking into account the reasons for the grant of consent, each of these changes, both independently and taken together, cause the proposed modified development to not be substantially the same as that approved.

Hatziandreou's submissions

1. Hatziandreou submits that, in undertaking the comparative analysis, any aspect of the development that is said to be essential to its substance ought to be "explicit and discernible", and that caution ought to be exercised when referring to the reasons given for granting a consent in order to understand the substance of the development. Hatziandreou submits that although a modification may seek to delete a condition which was subjectively important to the consent authority, when looked upon objectively, is not a matter which touches on the substance of the development.
2. Hatziandreou instead relies on the decision of Talbot J in Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106, in which his Honour considered that the removal of one floor and the reconfiguration of the units and the carpark resulted in a modified development that was substantially the same as that originally approved. In reaching this conclusion, his Honour stated (at [57]): "57 To modify is to alter without radical transformation so that it is essentially or materially the same or having the same essence. (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 and Vacik v Penrith City Council (1992) LEC No. 10242 of 1991 24 February 1992 Stein J unreported). If I had to decide the question, I would be prepared to find that the fundamental characteristics and essence of the building will remain essentially the same. Some of the qualitative and quantitative effects will be different but not to the extent that the character will be changed in a material respect."
3. In the same way, Hatziandreou submits that the fundamental characteristics of the proposed modified development remains the same, although some of the effects are different. In particular, Hatziandreou says, firstly, that the substance of the development remains an envelope that consists of two blocks with a central common open space, two retail shops on either side of a common entry lobby facing Rocky Point Road, and vehicle access from a rear lane to two levels of basement car parking.
4. Secondly, it says that the uses within the development retain form of 'shop top housing' within a single building.
5. Thirdly, Hatziandreou submits that the development as approved and the subject of the modification application both propose 20 residential apartments, two retail tenancies and the same number of car parking spaces located over two basement levels.
6. Fourthly, Hatziandreou further asserts that the apparent height as constructed remains as approved, with the introduction of a lift overrun and planter boxes all set back so as not to be visible from the street fronts.
7. Fifthly, Hatziandreou concedes that whilst there has been reconfiguration of internal layout on ground level and some reconfiguration of apartments, the development substantially locates units and retail spaces as per the approved development and the shops remain in the same location, with the increase in size kept within the building envelope.
8. Finally, whilst the proposed development deletes the approved deep soil planting, Hatziandreou submits that the planting would not have been visible from the street or neighbouring properties, was always constrained being located under a cantilevered building, and was therefore not a meaningful contribution so as to define its "substantial" essence.
9. For these reasons, Hatziandreou submits that the essence of the development remains the same in the proposed modified development, and therefore is "substantially the same" as the development originally approved.

The proposed modified development is not substantially the same

1. In undertaking the comparative analysis required by s 4.55(2) of the EPA Act, I am not persuaded that the development as modified by the present application would be substantially the same as that for which consent was granted.
2. On a quantitative assessment, the increase in the FSR and the increase in the floor space of the commercial uses, of themselves, are not sufficient in my view to render the modified development as something that is not substantially the same as the development as originally approved. Similarly, the change of plant rooms to additional bedrooms, in my view, is not of itself sufficient to render the modified development to a development that is not substantially the same as that which was originally approved, particularly in circumstances where the number of residential dwellings remains the same. However, the loss of communal open space on the ground floor central courtyard (reduction by 43m2) and the fourth floor (reduction by 74m2), results in a reduction in communal open space in those two main areas by 117m2 (once the circulation area at the ground floor courtyard is excluded). This has been brought about primarily by the decrease in the separation of the two buildings, from 11m to 7.6m, and changes to the level 4 layout. The provision of the communal open space by a roof terrace, although producing a compliant outcome, adds an additional residential floor to which occupant access is required.
3. On a qualitative assessment, the loss of that communal open space and deep soil area at the ground floor, the reduction in the separation between the two buildings, and the creation of the roof terrace, changes the built form outcome of the building. That is, the proposed modified development is a five storey building with a roof terrace, with a number of smaller communal open areas including the courtyard between the two component buildings, whereas what was approved was a five storey building in two component buildings with a sufficient separation to allow communal open space of high amenity at the ground floor between the two buildings and additional communal area within the built form at the fifth storey. The communal open space of the approved development was in those two areas, all within the built form and enjoying the amenity afforded by the separation of the two buildings. This is materially changed in the proposed modified development. For this reason, I cannot accept the submission of Hatziandreou that the fundamental characteristics of the proposed modified development remain the same.
4. In considering this qualitative comparison, I accept the Council's position that the provision of communal open space in the ground floor court yard between the two buildings and contiguous with a deep soil area was a material element of the development the subject of the original consent. This can be clearly discerned from the plans the subject of that consent. I accept the evidence of Mr Layman that the design of the building was to set the precedent for adjoining development, such that the mid-site courtyard could be replicated in adjoining development and create contiguous areas for deep soil and communal open space. I also accept his evidence and the evidence of Mrs Prodromou that the removal of the deep soil area and the reduction of communal open space at that ground level means that the proposed modified development is not substantially the same as the development that was originally approved. That this was an essential element of the development is also supported by the Council report (Ex A Tab 11), in which it is clear that, prior to the approval, the plans were required by the Design Review Panel to be amended to remove a roof terrace, to delete two units at the ground floor to allow for a ground floor court yard area, and to set the basement away from the boundary to allow deep soil in that same area. The significant reduction in the size of that ground floor court yard area, the removal of the deep soil area, and the reinstatement of the roof terrace, changes this essential element of the original development. Such a change to this element of the development takes it beyond what is "substantially the same".
5. As a result of these quantitative and qualitative changes, which in my view change an essential element of the original development, I am not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. As such, the pre-condition to the exercise of the modification power under s 4.55(2) has not been met, and there is no power for me to approve the modification application.

Traffic and parking impacts of the development

1. If I am wrong in my conclusion on the comparative assessment required by s 4.55(2)(a), I consider that an assessment of the merits of the modification application pursuant to s 4.55(3) leads to the conclusion that there is insufficient information to find that the development would have an acceptable impact on traffic and parking in the immediate locality. I would therefore refuse the modification application on that basis also, for the following reasons.
2. Firstly, there is a shortfall in the number of parking spaces to be provided, and the parking surveys are inadequate to establish that there is sufficient on street parking to accommodate the parking demand in lieu of the provision of car parking spaces.
3. Applying the car parking requirements of Chapter 4.6 of the RDCP to the development, a total of 37 car spaces are provided, including 7 car spaces for the commercial units (1 car space for each 40m2 of commercial area). The revised car park layout does not provide this number of spaces, and in order to ensure that the car parking requirements for the residential units are met, the allocation of car parking to the commercial uses is deficient by 3 spaces. The relevant objective in Chapter 4.6 is for the provision of "sufficient, convenient and safe on-site car parking while encouraging alternative modes of transport, such as walking and cycling". Mr Doan's evidence is that the commercial uses, which are both café/restaurant uses, are not "destination" restaurants to which patrons would travel. Instead, he says that they are uses that people attend on their way to/from accessing public transport or other uses in the locality. Further, Mr Doan has conducted parking surveys that demonstrate that between 10am-4pm on a Friday and 12noon-7pm on a Saturday, when considered at hourly intervals, there is sufficient parking in the locality. Mr Doan opines that these timeframes are the peak periods of usage of the two commercial uses.
4. Mr McLaren's evidence is that there are 6 issues with the parking surveys conducted, and that there is no evidence that the uses are not "destination" restaurants. Firstly, he points out that the hours of the restaurant/café use are 6am-6pm Monday to Thursday, and 6am-10pm Friday to Sunday, and that the parking restrictions in the area limit parking to 1hr or half hour periods. In those circumstances, Mr McLaren opines that the parking survey did not cover the period of peak use outside of daytime hours, and that hourly surveys would not capture the data accurately. Secondly, Mr McLaren points out that there are no surveys of patronage and parking availability in the night time period. Thirdly, Mr McLaren points out that there are no surveys conducted of staff or patrons in order to determine their mode of travel. Fourthly, it is unclear whether the operators of the commercial premises had prior knowledge of the survey, and fifthly, it is unclear whether there were any atypical activities in the area (such as the operation of the Intersection hotel not far from the site). Sixthly, Mr McLaren says that the counting method isn't sufficiently clear to determine how it accommodated cars parked across driveways. For all these reasons, Mr McLaren opines that the survey is not adequate to establish that there is sufficient parking in the locality. On this basis, the Council submits that the availability of on-street parking has not been properly established.
5. I accept the evidence of Mr McLaren and the position of the Council. Although the shortfall in parking is only by 3 spaces, there is no evidence on whether there is adequate on street parking in the immediate locality outside the hours surveyed to accommodate that shortfall, particularly in the evening when the commercial uses are in operation. Further, without any surveys of patrons, there is no evidence that the restaurant/café use is not a "destination" restaurant/café.
6. Secondly, there is no assessment on the impact of queuing in Clelland Lane as a result of the absence of a loading dock, the inadequate width for two-way passing and the requirement for a signalised traffic system for basement entry. Both Mr McLaren and Mr Doan agree that the built development provides insufficient length and width at the driveway entrance area (on Clelland Lane) to physically and safely accommodate an on-site loading bay, or to accommodate two-way passing. As such, the evidence is that a signalised system would be required for entry to the basement driveway, with queuing into Clelland Lane. As a result, there would be vehicles stopped in the laneway to queue for entry to the basement, for loading and unloading, and for waste collection. Had the development been constructed in accordance with what was approved, some queuing could be accommodated in the loading dock. It is the impact of removing that loading dock which has the potential to create an adverse impact on vehicular traffic in Clelland Lane. Whilst the Council raised the more general issue in its contention with respect to failure to provide a loading dock, and in its contention concerning the adequacy of the Traffix report, the Council's position at the hearing is that the failure to provide a loading dock results in impacts on the lane that have not been assessed. Mr McLaren's evidence is that although the queuing may be able to be accommodated, the impact is not known and some further analysis should be provided. I accept this evidence and the Council's position in that respect. The removal of the loading dock and the absence of any analysis as to the impact of the consequent queuing in Clelland Lane is contrary to the provisions of the RDCP, which at control 19 of Part 4.6, requires that: "Where building uses will require the provision of loading facilities they are to be designed in such a way as to permit all loading and unloading to take place wholly within the site and prevent conflict with pedestrian and vehicular movement within or surrounding the site."
7. For these two reasons, I find that there is insufficient information to form a conclusion that the development would have an acceptable impact on traffic and parking in the locality in light of the relevant controls in the RDCP. Accordingly, I would refuse the modification application on that basis also.

The outcome of the appeal

1. Mrs Prodromou, Mr Gheorghiu, Mr Layman, and Mr Tsioulos all gave further evidence with respect to the acceptability of the proposed modified development as considered in light of the contentions raised by the Council with respect to the design principles in SEPP 65, the FSR development standard, and the public interest. However, there is no utility in making a determination on those contentions in circumstances where I am not satisfied that the pre-condition to the exercise of the modification power under s 4.55(2) has been met, and where I would have otherwise refused the application based on inadequate information on the traffic and parking impact. The modification application cannot be approved.
2. The Court orders that: 1. The appeal is dismissed. 2. The application to modify the development consent for the mixed use development at 336-340 Rocky Point Road, Ramsgate, so as to incorporate the development as constructed as well as the proposed works set out in Annexure I to Exhibit 5, is refused. 3. The exhibits are returned, except for Exhibits B, D, L, M, Q, and 5. ……………………… J Gray Commissioner of the Court

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